Tag: Contracts

Is Physician – Patient Relationship a Contract?

Discussion Prompt

You are working as the manager of a multispecialty clinic. You have been notified that a patient has filed a lawsuit against one of your physicians that has terminated a relationship with a patient. Executive management has asked you to prepare a memo to describe whether a patient can make a successful claim for a breach of contract in this case. 

Sample Answer

Is Physician – Patient Relationship a Contract?

Physicians have legal and ethical duty toward their patients as long as they have committed themselves in providing these services and that the patients still needs them. There may be no written contract to define this relationship, however, the verbal committed of a doctor toward a patient and the patient trust toward a doctor creates a binding agreement which is recognized by the law, and which can be ascertained by medical recorded related to patient’s visits to the physician’s office (Portmann, 2000). Nevertheless there might be times when a physician might no longer be in a position of offering care to a patient he or she had committed to. This can occur due to a number of reasons. It might be the patient is making unreasonable demands, is noncompliant with provided medical instructions, threatening the physicians or his or her junior staffs or maybe contributing to general breakdown of physician-patient relationship. This may also be due to the physician inability to handle the patient condition due to lack of specialty in advance condition development or lack of needed facilities. Most of these reasons may be acceptable in termination of the physician-patient relationship; however, it must be done in a manner that does not indicate patient abandonment. Patient abandonment occurs when physician-patient relationship is terminated by a physician without a reasonable excuse or reasonable notice, and fails to offer the patient a chance to find a qualified care provider to replace the physician initiating a termination.

Can the Patient Make a Successful Claim for a Breach of Contract ?

In this case, there was a premature termination of patient-physician relationship, with clear demonstration of patient dissatisfaction on how the process was carried out. Based on the law, a patient can successful make a claim of a breach of contract, he or she must be able prove that patient abandonment occurred in the process. This is a fact specific issue, and for it to stand in a court of law, the patient must be able to prove that she or he was abandoned. The patient must be able to demonstrate that the physician had already committed himself into treating him or her and that the treatment was underway.  The patient must also demonstrate that the physician abandoned him or her when still in great need of medical care or in critical phase in the treatment process. He or she must be able to prove that the right termination procedures, which may include patient referral or prior notification with adequate time to look for replacement, were not followed. The patient must be able to demonstrate that the termination was abrupt and no reasonable reasons were provided by the physician for the abrupt termination of the physician-patient relationship (Chowdri, 2018). The patient should also be able to demonstrate that the physician did not offer any referral or guidance to obtain another qualified physician who can handle the patient case after the termination. Patient should also be able to demonstrate there were damages or injuries that took place as a result of the physician behavior. The claim will strongly stand if the physician will not be able to justify his behavior based on the patient situation or the circumstances that surrounded the termination, and to demonstrate that the right procedures were followed (Chowdri, 2018). Whether or not the claim of breach of contract or patient abandonment occurred will be determined by the evidence surrounding the patient’s claim. The hospital can thus maybe consider investigating the circumstances that resulted to this termination to get clear perception of this case.

Analyze the Remedies for Breach of Contract : Memo – Assignment Instructions

Candie Cardigan as a representative for CARDWARE has decided to auction her strapless giraffe print dress made of silk, satin with velvet markings. This particular dress was used in a movie filmed in S. Africa. The dress had been show cased among other famous dresses in the Silkadonia Actors Guild Museum. Cassie Cardigan was chosen to act as the auctioneer for World Wide Auction House. The bidding for the dress began at $5,000. Pearl has been looking forward to participating in the auction for this dress for over three months. Pearl raised her auction paddle and bid the initial $5,000. Jade also wanted the giraffe print dress and upped the ante to $5,500. The two battled the bidding to where it appeared that Pearl got the dress for $8,500.00, as Cassie smiled and nodded at Pearl.

Candie and Jade had been friends for years, as they had modeled together growing up as children. Candie quietly told Cassie to sell the dress to Jade. When Pearl presented $8,500 to Cassie, Cassie refused to take her money claiming that the dress was to go to Jade. Cassie further explained that Jade had allegedly had raised her paddle after Pearl’s final bid and showed five fingers meaning that she was bidding $500.00 more over the $8,500.00 bid made by Pearl. In reality, no such action by Jade had taken place.

Pearl now wants to sue for breach of contract. She has come to your office asking for your help. She wants you to request that Candie turn the dress over to her for the $8,500 that she bid. Your supervising attorney Les Agne indicates that you should investigate a cause of action for breach of contract, as well as a cause of action based on specific performance. Be aware of whom the true Plaintiff may be in this potential case and who causes of action may be brought against. Also, Les has scribbled the following notes to help you with organizing your thoughts regarding Specific Performance.

Dear Paralegal:

After you establish a contract exists as a result of the auctioning of the giraffe print dress, you may want to consider the following with regard to specific performance:

  • You must have a contract in place
  • The remedy at law must not be adequate (hence damages alone will not provide relief to the party who is seeking specific performance.
  • The remedy must be enforceable
  • If one party can bring the action for specific performance, so can the other if the positions were reversed.
  • If there were any conditions to the contract, all were.
  • Be sure to discuss defenses with regard to the contract. In other words, what will Candie or the Auction House say in response to there being a contract?

Assignment Instructions:

Please write me a memorandum in the following format:

Date:

To: Les Agne, Attorney at law

From: [Your Name]

Re: Potential Causes of Action for Breach of Contract and Specific Performance

Organize your memorandum with an introduction, body, and conclusion.

Note: Your memorandum length of 2–3 pages is separate from the cover sheet and reference page.

Avoid the use of first person.

Provide in-text citations. If a reference is listed in your reference page, make sure it is displayed within your submission where you retrieved information from.

Provide hanging indents where needed.

Double space throughout your submission, including throughout your reference page. Note: This includes between your references.

Your reference page should be separate from the body of your submission.

Use Times New Roman size 12 font.

Provide an APA formatted cover sheet.

 

Critically evaluate the concept of “relative bargaining power” in the contractual relationship between

Relative Bargaining Power – Paper instructions:

Assignment Title/Question : Critically evaluate the concept of “relative bargaining power” in the contractual relationship between host-governments and international oil companies in the early stages of an E&P contract.

You must support your answer with relevant and appropriate examples.

You are required to develop a well presented and logically structured essay on the concept of ‘relative bargaining power’.

Basically you are evaluating the respective parties (Host States and IOC’s) bargaining powers and how the pre-contractual negotiations subsequently translate into a full blown E & P contract. Evaluate which party has more bargaining power and why is this so? Look at the following issues :-

(1)    The asymmetry of information in the hands of the IOCs
(2)    Their technical expertise, and
(3)    They are financing the project development.

Compare this with concession agreements – how do these differ?

Also look at royalty payments and returns, and see how these payments and returns affect the relative bargaining power of the parties.

You should aim to develop a number of competing arguments on the dynamics of the relationship between the host-governments and IOCs.

You are to provide a balanced view of the issues involved and whether contractual relationships are sustainable in the long-term in oil producing countries without strong legal frameworks for enforcing contracts.

Federal Contracting Activities and Contract Types

The Department of Defense plans to issue a $400,000 government contract to a company that specializes in drone navigation technologies. As a result, a government auditor has been contacted to examine the operational data VectorCal and one competitor (previously identified as NavoTech) in order to decide which company should win the government contract.

Note: You may create and /or make all necessary assumptions needed for the completion of this assignment.

Write a six to eight (6-8) page paper in which you:

  1. Create a one-page overview of the history and background of each company vying for the government contract.
  2. Specify at least one (1) of the recent major contracts that was awarded to both companies. Explain the fundamental reasons why both companies were awarded the contract(s) that you specified.
  3. Determine the type(s) of contract for which both companies might be eligible (e.g., fixed-price, cost reimbursement, etc.). Justify your response.
  4. Discuss at least three (3) direct costs and three (3) indirect costs that each company incurred during the production of its navigation system. Explain the manner in which this data would factor into your decision as to which company would be more eligible to receive the contract.
  5. Suggest which company should be awarded this government contract based on the data that was presented for each company. Next, provide three to five (3-5) reasons to support your stance.
  6. Use at least three (3) quality resources in this assignment. Note: Wikipedia and similar Websites do not qualify as quality resources.

The specific course learning outcomes associated with this assignment are:

  • Specify the government policies regarding profit and pricing adjustments for contracts.
  • Evaluate the role played by contract auditors.
  • Use technology and information resources to research issues in cost and price analysis.
  • Write clearly and concisely about cost and price analysis using proper writing mechanics.

Contract Manager’s Responsibilities

Contract managers perform various duties over the course of a contract. To begin with, they control variations to the contract in terms of change of policy, quality, quantity, price, timing and delivery. Variations in this case refer to the amendment of a contract which changes the original terms and conditions of the agreement. Contract managers are therefore required to ensure that a contract is not varied to the extent that it alters the services offered or the pricing and even the nature of goods and services offered (Shaik, 2014). A contract should only be varied in distinct circumstances, with the contractor and the acquiring entity coming into an agreement that is either written or oral.  A contract manager is expected to also ensure that a contract is not varied due to serious problems such as poor performance. Contract managers should know the real reason behind variation of a given contract. Contract managers also need to ensure that for the terms and conditions of a contract to vary, the involved parties must present parts of the original transaction.

Another role of a contract manager is to manage disputes. Human beings have different, conflicting ideas which get them into conflicts. A dispute is said to have occurred when the two parties are not able to agree on an aspect with regard to the contract. A control manager therefore, is expected to be rational and unbiased in order to contain such conflicts by identifying the root cause of the problem and then addressing it.  The manager should refer a conflict between both parties to the contract resolution mechanism that was agreed upon at the time of signing the contract (Shaik, 2014). Sound understanding of their responsibilities by both parties helps to reduce disagreements within the tenure of a contract. To avoid escalation of disagreements, a control manager should recognize a dispute at an early stage. Unresolved conflicts can greatly affect the contract and in a worse scenario leading to termination of a contract. A contract manager can employ various forms to resolve a dispute. Negotiation tactics, litigation, arbitration or mediation can be used to solve disagreements.

Differences Between a Contract and a Strategic Initiative

There are distinct differences between a contract and a strategic initiative. First, a contract is an agreement that is legally binding between two or more parties, while a strategic initiative in an organizational tool that helps in achievement of organizational goals. Strategic initiatives are seen as means over which an organizational vision is transformed into practice. Therefore whatever is written down in a contract can only be achieved with the use of strategic initiative skills.  Contracts have to be signed by the concerned parties in the case of written contracts, and commitments of fulfillments agreed upon, while a strategic initiative is written down by members of the organization without signing (Nijssen, 2014). ). It is important to add that contracts are only written once, and signed for security and accountability reasons, while strategic initiatives are mostly written and reviewed on a monthly basis by the leadership team so as to ascertain the performances of the organization. This shows that contractual performances cannot be evaluated without the use of strategic initiatives. The other difference is that contracts are regulated by the laws of the given region, and any violations like the invalid contracts can lead to legal problems. Strategic initiatives on the other hand have no restrictions whatsoever, and members of an organization can create and abolish initiatives at their own will, as long the desired organizational objectives and goals are achieved. This means that contracts have standard regulations that have to be adhered to by all the parties signing it, while strategic initiatives despite of having standard templates, the leaders can choose what to include and exclude. Strategic initiatives are therefore more flexible in terms of its usability compared to contracts.

Contract Definition And Components

What is Contract?

A contract is basically an intended plan concerning two or more parties and which is enforceable by law as a legally binding agreement.

What are the components of a legal contract?

The contract is only considered to be valid and legal if it contains the six essential components. One of them is that, it should entail an offer and acceptance note. A contract is usually formed when one party makes an offer and the other party accepts the offer, in exchange of desired benefits. A good contract is one in which both parties benefit from the agreement to avoid chances of causing conflicts in future (Corey, 2015). The other component is the intention between the parties to form binding relations; these intentions are legally bound by the contract. This is followed by consideration, which is the promise of something that is valuable given by the promisor to the promised party in exchange of the desired benefits. The other one is that legal parties for the mentioned parties should have the legal capacity be to enforce contracts. For example, minors below the age of 18 years may not have the legal capacity to sign a contractual agreement. The next one entails the genuine consent of the parties, it is mandatory that all contracts are written down; some may be made orally or even by conduct, depending on the genuine consent of concerned parties. The final component is the legality of the agreement, a contact is deemed to be illegal if it promotes individuals to commit crimes, or the parties lack the capacities to enforce contracts.

What must parties agree before a contract can be entered into?

Before a contract is signed, concerned parties must consider and agree on several factors beforehand. The first one is that, they must agree on the agreement process. This entails the process of one side of the party offering the desired terms and conditions that guide the process, and the other party either accepts or rejects the conditions. The offers changes to a counter-offer if the party changes the terms and conditions being offered. When this happens, the parties negotiate on the most appropriate terms that will benefit both parties, and upon making proper decisions, the agreement can be signed. The must also agree on the desired obligations and conditions of the contract (Gilbert, 2012). They have to ensure that all parties know and accept their obligations, and what they have to do to ensure that the terms and conditions in the contract are fulfilled to the latter end. They must also agree on the performances of each party, how they are going to be evaluated and monitored to ensure that transparency is maintained. The other factor is payment terms, how they are going to finalize the payments and fulfillment of the promises pledged. Finally, they have to agree on the right mode of punishment in the event that one of the concerned parties decides to breach the signed contract, and what should happen if both parties fail to fulfill their deal in the agreement.

Terminating Government Contracts

Termination for default as cost saving measure

Examine the manner in which termination for default can be categorized as both a cost savings measure and a creator of additional cost. Provide one (1) example to support your response. 

No cost settlement

In the event that work has scarcely started or if all things can be attractively redirected, it is conceivable that the foreman will have the capacity to sign a discharge of risk and impact a no-expense settlement: Many bigger firms waive their case if the dollar sum is ostensible, accordingly evading the red tape and included expenses of experiencing the official end method (James, 1963, p.70).

There is an extensive contrast in the treatment of end claims between settled value and expense repayment contracts. Under a settled value end, all expenses (counting subcontractor claims) also, benefit are incorporated in the case. On an expense repayment end, a contractor may choose to proceed to voucher expenses in the ordinary style, with his case basically being a proposed acclimation to his charge (which can be put together by letter), or he may choose to stop vouchering and incorporate expenses not vouchered to date in his case along with a proper charge modification. In both cases stock timetables must be submitted and additionally a Schedule of Accounting Information, DD Form 546, where fitting (Feldman, 2013). The Regulations put a six-month breaking point on vouchering out under a totally ended contract’ Initially, give us a chance to analyze the strides needed in arrangement of an end claim under a settled value get the cost of which may be firm or redeterminable (James,1963,p.70).

Conclude the manner in which the termination for default clause impacts contracts when it is also both a cost savings method and a creator of cost mechanism.  Provide a rationale for your response.

Termination for default as creator of additional cost

Terminations for default quite often deliver venture postponement, expense overwhelms, broken business connections, legal counselors and claims. The danger of these antagonistic results can be diminished by your utilization of a privilege to supplement the work teams of a defaulting builder. A decent “right to supplement” provision is fundamental. On the off chance that end gets to be important, your first utilization of the less uncommon cure of supplementation will offer assistance induce a court or assertion board that you acted sensibly and investigated other conceivable outcomes before practicing your end rights.

Since the privilege to cross out your agreement commitments to another gathering is such an uncommon activity and the results for the ended party so regularly shocking, courts intently examine the ending party’s activity of end rights. On the off chance that the ending party neglects to touch the greater part of the agreement bases important to legitimize the end, a court might find that the end was “wrongful” and honor the ended party the estimation of the work performed, lost benefits on any unperformed work, and in addition other direct or noteworthy harms. Therefore, in the activity of end rights, it is critical to take after absolutely each contractually obliged stride in the end process. Generous agreeability with the end provision is sufficiently bad. Take no short cuts. Do it entirely by the book. Utilize “default” as end rights are conjured. Obviously convey a goal to summon the end condition and—if an execution bond surety is included obviously demonstrate the goal to call upon the surety to perform. At the end of the end notice period, affirm that the agreement is ended, regardless of the possibility that a second notice is not needed by the agreement (Riggs, 2014).

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Consulting Contract Sample Paper

This Contract is made on 10th January 2016 between the Hospital Department (the “Department”) and Name (the “Consultant”). WHEREAS, the Consultant, is allowed by law to execute restricted consulting services for varied organizations; WHEREAS, the Department requires the Consultant to offer it assistance and advice in her or his professional field; and WHEREAS, the Consultant agrees to offer such assistance and advice to the Department in line with this Contract’s conditions and terms;

NOW, FOR THAT REASON, the Consultant and the Department at this point are in agreement as follows:

  1. Boundaries of Consultant Analysis and Contract’s Objectives

(a) Dependent on this Contract’s conditions and terms, the Department at this point retains Consultant as its technical advisor to execute the following two consulting services ONLY:

  • Establish why the Department’s project teams have not been meeting the set productivity targets semi-annually for three years
  • Establish why the Department’s project teams have not been offering patient-related information within the set timelines semi-annually for three years

(b) The Department may request for other consulting services from the Consultant in writing periodically, and Consultant concurs, in line with this Contract’s conditions and terms, to offer the additional services when the Contract is still effective. The additional services shall be constrained to the Consultant’s professional field as agreed on periodically. The commitment of the Consultant hereunder shall be limited to 30 days per annum.

  1. Information to Be Sought by Consultant and Consultant’s Role

(a) It is appreciated that the Consulting is aimed at providing regular reviews, as well as advice, pertinent to particular Department matters, and both the Department and the Consultant will not draw benefits from any inaccurate commentary or advice given by the Consultant based on inadequate information. Towards that end, the Department and its staff members shall offer Consultant, before meetings, sufficient, unbiased, and accurate information for reviewing the subject issue thereof. The Department and its staff members shall promptly offer Consultant additional information that the latter considers pertinent to drawing any relevant conclusions pertinent to the subject issue thereof.

(b) The Consultant and Department concur that the Contact generates an autonomous contractor relationship as opposed to a service or employment form of relationship. The Department will not offer Contractor any form of employment benefit. Besides, neither the Department nor the Consultant may bind the other Contract party.

  1. Product or Services and Department Support

(a) Contractor shall;

  • Establish why the Department’s project teams have not been meeting the set productivity targets semi-annually for three years and file reports thereof with Department
  • Establish why the Department’s project teams have not been offering patient-related information within the set timelines semi-annually for three years and file reports thereof with Department

(b)The Department may request for other consulting services from the Consultant in writing periodically, and Consultant concurs, in line with this Contract’s conditions and terms, to offer the additional services and reports thereof when the Contract is still effective.

(c) Consultant recognizes that Department does not purpose to gain any confidential information, know-how, trade-secrets or related intellectual property acquired by Consultant from other parties, including the hospital. The Department concurs that when Consultant is offering the Contract services, he or she shall not bee obligated to disclose or utilize the intellectual property of Consultant’s former clients or current clients.

(d)  So as to enter the Contract, Department agrees and acknowledges that in case there is a disagreement regarding the quality of the services offered by Consultant as per the Contract, the Department shall notify Consultant promptly.

(e) So as to enter the Contract, Department agrees and acknowledges that in case there is a disagreement regarding the obligations of Consultant as per the Contract; the Department shall notify Consultant promptly.

(f) The Contract’s terms shall always take precedence over the obligations of Consultant to Department to establish why the Department’s project teams have not been meeting the set productivity targets and file reports thereof.

(g) The Contract’s terms shall always take precedence over the obligations of Consultant to Department to establish why the Department’s project teams have not been offering patient-related information within the set timelines and file reports thereof.

  1. Confidentially, schedule and Feedback

(a)  Regarding the services offered by Consultant, Department may reveal to Consultant proprietary and confidential information. The Consultant may as well generate such information within the Contract’s scope

(b) Consultant is always obligated to keep all the proprietary and confidential information offered by the Department confidential.

(c) Department is always obligated to keep all the proprietary and confidential information offered by the Consultant confidential.

(d) Department will be filing reports regarding the Contract services with Department after every six months starting on the Contract’s effective date.

(e) Department shall establish why the Department’s project teams have not been meeting the set productivity targets semi-annually for three years and file reports thereof with Department.

(f) Department shall establish why the Department’s project teams have not been offering patient-related information within the set timelines semi-annually for three years and file reports thereof with Department.

(g) The Contract shall be effective from a period of three years starting on the Contract’s effective date.

(h) All the communications and feedback from Department to Consultant or Consultant to Department shall be in writing.

CONSEQUENTLY, the Contract parties deliberately are in agreement that neither of them may assign the Contract devoid of the in-print authority of the other.

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What is social contract theory?

The social contract theory holds that in earliest history man lived in a “state of nature.” No government existed. Each man was only as secure as his own power and mental awareness could make him.
By agreeing with one another to make a state by contract, men within a given area joined together, each surrendering personal freedom as necessary to promote the safety and well being of all. By this contract the members created a government. The social contract gives rights and responsibilities to both the citizenry and the government.
For example, in The United States, citizens yield the powers of prosecution of, and punishment for, criminal offenses to the judicial branch of government. The government, for its part, bears the responsibilities of maintaining public safety for the citizens through the police, court systems, correctional facilities, and all supporting structures.

Breach of Contract Example

Walt Shoddy, the owner of Shoddy Shoe Repair, was contemplating retirement. He therefore contracted to sell the business to Pauline Parker. Shoddy Shoe Repair was located in Hoosierburg, Indiana, which has a population of 5,233. Besides containing a provision entitling Parker to use the Shoddy Shoe Repair name for the business, the parties’ contract included a clause that prohibited Shoddy from opening up a competing shoe repair shop in Hoosierburg for a period of one year from the date of the parties’ contract. Two months after the date of the contract (and one and one-half months after the sale of the business to Parker had been completed), Shoddy grew tired of retirement. As shoe repair had been his life’s work, he opened up a shoe repair shop in Hoosierburg. Parker has sued him in an effort to obtain an injunction against his operation of the competing business, alleging a violation of the parties’ contract. How is the court likely to rule? Explain your reasoning.

Case Brief – Bill Beasley and California Cuisine Inc Premature Contract Termination

This paper discusses the conclusions, which Bill Beasley and California Cuisine, Inc. arrived at after a disagreement between them arose leading to premature termination of the contract. In regard to the issue, the later hired the former as its executive office during company management restructuring. As a proactive executive, Bill got involvement in the development of a new restaurant concept without either involving or informing the company’s board of directors and/or the Company’s Co-Chief Executive officers. Upon discovering that Bill had developed a new restaurant concept and operationalized it, the company management became angry for not being involved in its development. For this reason, Bill’s services were terminated before the expiry of the contract period on claims that he breached the contract. Besides, terminating the contract, the company demanded the return of the salary that Bill had received for the entire time he was employed. Bill, on the other hand, claimed that he had been wrongly terminated and filed a number of demands, which he required the company to meet.

In regard to the rule, the contract between Bill Beasley and California Cuisine had been formalized into a written agreement before the former began delivering his services to the later. Section 3 of the contract agreement between California Cuisine and Bill Beasley had a clear outline of the Executive’s duties during the period of the contract. The duty requirements of the executive entailed “directing and supervising the management, officers, business, and affairs of the company and perform such other duties commensurate with his offices and as directed by the Board and/or the Company’s Co-Chief Executive officers”. According to Mallor, Barnes, Bowers & Langvardt (343), the offeror of the contract agreement is usually regarded as the “master of the offer”. In this case, California Cuisine offered Bill Beasley a contract to serve as its executive officer, but the terms of the agreement required him to perform his duties in accordance with the directions of Board and/or the CO-CEOs. California Cuisine as the offeror of the contract, included terms and conditions in the agreement could limit the effective life of the agreement. The phrase “as directed by the Board and/or the CO-CEOs”, was meant Bill’s freedom to operationalize his ideas in the company without involvement of the Board and/or the -CEOs. Section 3 of the contract agreement meant that the Executive was supposed to inform and involve the Board and/or the CO-CEOs in every idea that he intended to functionalize Co in the company.

In regard to the application, Mallor et al.  (355) claim that acceptance of the terms of the offeror is the mirror image of the offer. Therefore, in accordance with the traditional contract law, the offeror should not make any attempts to add new terms or make changes to the existing terms. Any attempts to make additions or changes to the terms amounts to counteroffers. This is because such offeree’s attempts are an implied indication of his or her inability to be bound to the terms of the offer. The contract agreement that was signed between Bill Beasley and California, Inc. had terms that were supposed to be observed by the former. Under section 3 of the contract agreement, the executive’s duties were supposed to be solely supervision in accordance to the directions of the Board and the Co-CEOs.

Even though Bill Beasley, being the executive, was supposed to offer supervisory services, as directed by the Board and/or the CO-CEOs, his participation in the strategic planning was part of his managerial duties. It is evident that the new restaurant concept raised the company’s pre-tax net income from $72,000 in 2011 to $387,191 in 2012. Even though the company was not informed about the new restaurant concept, the main objective of maximizing revenues was realized. This is a sure indication that Bill’s involvement in the development of the restaurant concept was done in good faith, and had no intentions of changing the terms of the contract agreement. Since section 3 of the agreement required Bill to perform supervisory services, it was right for him to perform his managerial duty of supervising the company’s strategic planning office that led to the development of the new concept. Taking the matter to the court will be the best option for Bill because his efforts at the company were meant to improve the revenues of the company and the financial records are available to prove that.

Describe and analayze the five elements of a contract that must exists for this agreement to be enforceable

Suppose that the Fabulous Hotel hires you as head chef under a two year employment contract. After two years, another hotel wants to hire you. However, in the original employement contract you signed with the Febulous Hotel the followinig paragraph appears
The below signed agrees not to work as a chief for another hotel in the same metropolitan area for a period of two years after leaving our employment.

  1. Describe and analyze the five elements of a contract that must exists for this agreement to be enforceable.
  2. Explain why this contract is governed by common law or the Uniform Commerical Code ( UCC).
  3. Examine at least two circumstances in which this non compete agreement would be unenforceable.Four to five pages APA formatted must cite three scholary sources.

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Essential Elements Of An Enforceable Contract – Answered

Elements of a Contract

Fabulous Hotel recruits me to work as its head chef based on an employment contract running for two years. With respect to the contract, I am the offeree while Fabulous Hotel is the offeror. After working for Fabulous Hotel for two years, I find out that another hotel is interested in hiring me. Even then, in the contract that I signed I agreed not to offer chef duties to any of the Fabulous Hotel’s competitors within the metropolitan hosting Fabulous Hotel for two years after leaving its employment. That means that the contract is a non-compete agreement (Beatty & Samuelson, 2015; Miller & Jentz, 2010). This essay explores the elements that ought to be present for the contract to be legally valid, or enforceable. The essay examines whether the contract falls under the UCC (Uniform Commercial Code) or falls under common law.

Contract Elements

There are diverse contract elements that ought to exist for the contract between the Fabulous Hotel and the offeree to be lawfully enforceable. First, it ought to be evident in the contract or assumable that both the offeror and offeree intend to put in place a contract that is lawfully binding. In the contract, it ought to be clear or assumable that either of the contract’s parties can bring claims to the court against the other for failure to accomplish its obligations under the contract (Beatty & Samuelson, 2015; Miller & Jentz, 2010). Notably, the presumption that both the parties have it in mind to put in place a contract that is lawfully binding is only disallowed where the parties affirm particularly that they do not intend to put in place a contract that is lawfully binding.

Second, the contract can only be enforced legally if contains lawful offers. Offers are expressions of willingness to act in particular ways that give rise to contracts if tagged along by the unqualified approval, or acceptance, of the other parties to particular contracts. In the case of the contract between Fabulous Hotel and the offeree, a time restriction for the offer therein is specified, a two-year period (Miller & Jentz, 2010). Notably, some contracts do not specify the time limits for the offers made in them. It is legally assumed that the offers remain legally binding for evenhanded periods before being cancelled or revoked by the offerors (Beatty & Samuelson, 2015).

Third, the contract between Fabulous Hotel and I can only be enforced legally if the latter accepts the offer made by the former. In most cases, contract offerees accept the offers made in writing. In some cases, contract offerees accept the offers made orally. Some contracts allow for the simultaneous performance and acceptance of the duties, or offers, specified in them. With respect to such contracts, offerees can accept the offers made to them via conduct.

Notably, if an offeree only accepts some components of the offers made, the contract is deemed legally invalid (Beatty & Samuelson, 2015). That means that a contract is only legally binding when the offers made in it are all accepted unreservedly. When an offeree accepts the offer in a contract partially, he or she is legally deemed to have made placed a counteroffer. In employment and businesses settings, successive counteroffer s may be made by offerors and offerees prior to the coming out of the ultimate acceptance (Miller & Jentz, 2010).

Fourth, the contract between Fabulous Hotel and I can only be enforced legally if the element of consideration is evident in it. In the law of contract, consideration denotes a disadvantage to the party or parties making promises in given contracts or the benefits, or advantages, given to other parties to the contracts. Notably, the advantages and the detriments ought to be quantifiable based on economic terms.

Some of the commonest considerations in the law are services, money, and goods. With respect to any given contract, consideration may be insufficient without necessarily allowing offerees to launch claims for the corresponding shortfalls (Miller & Jentz, 2010). When a given contract is not enforced in a deed form, any gift promises in it are can not be enforced lawfully since there would be no mutual consideration exchange.

Fifth, the contract between Fabulous Hotel and I if it can be only be enforced legally if it is evident that at the time of signing the contract I and the hotel had the capacity or ability or authority to make it. Lunatics and minors are devoid of such legal capacity. When a party that is devoid of the capacity enters into any contract, the contract is voidable (Miller & Jentz, 2010).

With regard to the contract, any party requiring protection is allowed to seek out to steer clear of the related contractual liability (Beatty & Samuelson, 2015). That rule holds in all cases save for when a party that is devoid of the capacity enters into a specific contract for necessities, or necessaries, which are services or even goods that are essential to a minor’s life condition. If minors fail to meet their payment obligations with regard to the necessaries, those supplying the necessaries can sue them.

Contracts and UCC versus Common Law

Any given contract falls under either the general UCC law body or the general common law body (Beatty & Samuelson, 2015). Owing the dissimilarities between the two sets of law, the contracts falling under either of them have marked differences especially regarding their enforcement and outcomes of the disputes based on them. The law under which a contract falls influences the related collection of punitive damages and the determination of whether the contract should be modified or discharged (Miller & Jentz, 2010). It as well influences the ability to sue when the contract’s provisions are breached and the determination of the contract’s validity. The contract between Fabulous Hotel and I falls under common law.

Especially, the contract between Fabulous Hotel and I falls under common law since it relates to employment (Miller & Jentz, 2010). Contractual transactions that are governed by common law relate to employment, intangible assets, real estate, insurance, and services. Contractual transactions that are governed by the UCC involve tangible objects as well as goods. The common law requires that in a contract, the contractual acceptance be precisely comparable to the offer’s terms for the contract to be considered valid (Beatty & Samuelson, 2015; Miller & Jentz, 2010).

If the offer is changed, acceptance is impossible and viewed as a counteroffer or a rejection. On the other hand, if a contract is UCC-governed, contractual acceptance need not be precisely comparable to the offer’s terms for the contract to be considered valid as long its effect on the contract is not material (Miller & Jentz, 2010). The UCC principally zeroes in on quantity but the common law principally focuses on varied issues, including those relating to character of the work, performance time, price, and quantity.

When is a Non-Compete Agreement Unenforceable?

Essentially, the contract between Fabulous Hotel and I is a non-compete agreement (NCA). NCAs are employee-employer contracts in which employees accept not to offer labor to the employers’ competition for specified periods after discharging the employees (Miller & Jentz, 2010). Different states have different NCA laws as well as rules regarding the degree of the enforceability of NCAs (Epstein, 2007; Epstein, 2009). There is a high likelihood that the courts will find the NCA between Fabulous Hotel and I may be unenforceable for lacking consideration if the hotel gave the NCA to me to sign after I had started working for it and did not grant me extra benefits or payments for agreeing to its terms (Lagesse & Norrbom, 2006).

As well, there is a high likelihood that the courts will find the NCA between Fabulous Hotel and I may be unenforceable or ineffective if Fabulous Hotel is within a state that has legal limitations against NCAs’ enforcement (Epstein, 2007; Lagesse & Norrbom, 2006).Notably, there are a significant number of states that have placed limitations on NCA enforceability since they view them as interfering with employees’ elementary capacity for earning their living by working (Epstein, 2007; Epstein, 2009). Such limitations commonly restrict the geographical regions where employees are not allowed to offer labor to competitors. They as well limit the time frames when NCAs remain in force with respect to particular employees.

 

Federal Contracting System: Small versus Large Businesses

Imagine you made your hobby of building model airplanes into a small business that produces very small remote control aircrafts capable of long sustained flights. You are ready to expand your business by competing for Department of Homeland Security contracts.

Write a two to three (2-3) page paper in which you:

 

  1. Analyze how the federal act supports and favors your business over large multinational organizations that build aircrafts (e.g., Mitsubishi Aircraft Corporation).

The US federal law renders more support to startup and small businesses building aircrafts than the large businesses competing with them for contracts. The law makes the federal government come off as unfairly supporting the startup and small businesses. In some instances, the law makes the government as operating under a business size-centered industrial policy hinged on crony capitalism persuasions (United States, 1990). From the 1950s, the federal economic policy has favored small businesses, including those building aircrafts, over multinationals. For instance, the policy exempts small businesses from many of the regulations that large businesses have to comply with (Atkinson, 2014). Unlike the large businesses, the small businesses are taxed less by the government and are given priority when businesses are being considered for the awarding of government contracts.

Besides, unlike the large businesses, the small ones have had a federal agency provided from them, the SBA (Small Business Administration). The SBA originally operated as the RFC (Reconstruction Finance Corporation) up to the 1950s. The agency’s Office of Advocacy is charged with making non-legislative, as well as legislative, proposals to the federal government for the elimination of any unnecessary or excessive regulations or rules affecting small business operations. Notably, large businesses as well have some of their operations hampered by particular regulations or rules (Atkinson, 2014). There have been calls for the reforming of the RFA (Regulatory Flexibility Act) to appraise the effects of given regulations on small businesses that are less than 24 months old and exempting them from more regulations than is the case at present.

In federal procurement programs, small businesses have legally defined set-asides unlike the large businesses. That means that commonly, small businesses win particular contracts even when their value bids for the same fall way below the value bids of large businesses. Notably, the set-asides make federal contracting rules rather complex, to the detriment of especially the large businesses’ interests. There are various research programs for supporting businesses that support small businesses exclusively. Such programs include the SBIRP (Small Business Innovation Research Program). The SBIRP awards small businesses limited research grants when they apply for them. Notably, there have been growing calls by large businesses to have such programs redesigned to ensure that all businesses can access them their sizes notwithstanding according to the submissions made by Atkinson (2014). The federal government comes off as rather inattentive to the calls, possibly owing to the spirit of the business size-centered industrial policy.

  1. Create an organizational chart that would best support working within the federal contracting system and explain the value of each position (i.e., internal contracting officer) to your proposed business.

The following organizational chart would offer the best support to a small business building aircrafts within the US federal contracting system. The federal contracting agency officer is charged with helping in the design of projects, identifying the outcomes expected out of particular contracting processes and executing market research to establish how the outcomes can be attained most effectively. The federal contracting agency officer is responsible for informing the public and interested parties of the agency’s intention to pursue particular acquisitions via agency business forecasts. Any interested business expects its internal contracting officer to be on the look out for the forecasts (United States, 1990).

The federal contracting agency officer solicits for a proposal or quotation from the interested business’ internal contracting officer. The two officers participate in the evaluation of the proposal or quotation against other proposals or quotations. The federal contracting agency officer may invite the internal contracting officer for negotiations if his or her business’ proposal or quotation is considered for the attendant award. If the federal contracting agency, through its officer, is satisfied with the proposal or quotation, it awards the contract to the business.

Aspects of Contract and Negligence for Business

Introduction

Gergen (2013) provides that negligence is the failure of an individual to exercise a reasonable duty of care which any prudent individual would have exercised within a similar case scenario. Therefore, the tort of negligence is put in place to cater for the harm which arises in situations where harm, rather than intentional harm, is caused as a result of carelessness. Further, Gergen (2013) indicates that a vicarious liability is a situation where an individual is held responsible for an act of omission of another party. Normally, it is composed of different elements such as a supervisors ‘authority of controlling the employee, having and the activities of an employee falling within the scope of the training objectives presented. This paper provides an insight into how the tort of negligence can be employed in different business situations through the application of the elements of vicarious liability.

Analysis Based on the Tort of Negligence

Statement A provides that Neil does not owe Roger a non-delegable duty of care as required by the tort of negligence which involves providing the employees with a safe working environment. This statement is not accurate as the employer has the obligation of providing employees with a safe working environment. This is evident as he never provided the employees with gloves despite the fact that they were available causing the dishwasher to have rashes.

Statement B provides that Roger has the capacity of bringing a claim in vicarious liability against Neil for Colin’s actions. This statement is not accurate as vicarious liability does not include any element which caters for employer breach of duty to the employee. Therefore, it may not be applicable in this case scenario.

Statement C provides that Poshplace hotel is liable as outlined by the Occupiers liability act of 1957. This statement is true and accurate based on the fact that the liability act of 1957 is put in place to protect the interests of the visitors to a business and its environs. Dimond (2002a) states that the liability act provides that the occupier of a premise has a duty of care to all its visitors unless if the visitors get into an otherwise form of agreement with the occupier. Furthermore, the act provides that the common duty of care involves all the circumstances of a reasonable case which is meant to ensure the safety of the visitor. In cases where the visitor to a premise suffers damage of any sort arising from the dangers he faces in the premise without any prior warning, a conclusion can be drawn that the visitor was not provided a reasonable safety within the premise as expected by the occupier’s duty of care. Therefore, it is possible to sue the occupier which in this case is the Poshplace hotel based on the tort of negligence. This is based on the fact that Mark was not provided with any prior notice on the dangers he was expected to face for instance, the fact that they have a gardener who is also a thief who might cause danger to Mark as a visitor.

Statement D provides that the hotel is not liable to Mark based on the Occupier’s act of 1984 based on the fact that it issued a warning notice. Dimond (2002b) implies that this statement is accurate based on the fact that the Occupiers act of 1984 covers the occupier’s liability for trespassers as well as visitors in the cases where an actual knowledge of the existence of danger was issued. Factually, the hotel issued a notice that no visitor should access the swimming pool at any time between 7pm and 7AM. Despite the fact that Mark saw the notice, he still went ahead and jumped in, despite the pool being empty where he suffered severe injuries based on his negligence. As similar case to this scenario is the British Railways Board v Herrington of 1972 where the occupiers actually owed a duty to the trespassers based on the fact that they did not issue a notice regarding an existing danger.

Statement E provides that Mark has the capacity of using the ordinary principles of negligence to make a claim against the damages caused to him while at the Poshplace hotel. This statement partially accurate. Reason being, Mark can only claim compensation for the damages caused to him when Neil decided to threaten him and steal from him while in the hotel. The damages caused when he decided to jump into an empty pool are not valid against the hotel.  Evidently, Gergen (2013) reports that the ordinary negligence principles provides that the hotel must have breached its duty of care to Mark with a factual causation being available. In this case, factual causation was only available when Neil threatened and caused damage to Mark after stealing from him. In addition, legal causation must also be available. In Mark’s case, it is evident that the hotel exposed Mark to some danger as a result of their breach of duty. This further caused Mark some potential harm which means that the hotel has to be sued for Mark to be compensated.

Statement F which provides that Mark will not have the capacity of claiming for the cost of their designer swimming trunk as required by the Occupiers liability Act is accurate and true. Reason being, the occupiers’ liability act  indicates that an injured visitor can only make claims for personal injury and death but not for the damage of personal property (Dimond 2002b). Mark’s swimming trunk is considered a personal property.

Statement G states that Mark has the ability of bringing a personal claim in vicarious liability against the hotel for the loss of his jewelry which took place in the premise. This statement is accurate as it is evident that two elements of vicarious liability were neglected for him to loose the jewelry having in mind that the thief was actually the premises employee, Neil. Incidentally, the second element of the vicarious liability provides that the supervisor hold an inherent authority of controlling the employee (Brodie 2007). Therefore an assumption can be drawn that the hotel’s management directed the employee to steal from the visitor. The third element of the liability was also breached which states that the activities of the employee within an institution falls under the scope of the training they underwent before being employed. Therefore, a conclusion can be drawn that the employee was trained to steal from the visitors as part of his objective. Therefore, Mark can bring a personal claim based on vicarious liability.

Preparing to Contract

For the last class, you are going to negotiate a contract with another student as your final project. The facts applying to the contract negotiation will be given during class. After the contract terms are negotiated, you will have to write (IN CLASS) a contract and include all of the required material terms.  The requirements are what you have been studying when you read Chapters 9, 10, 11, 12, 13, 14, and 15. Of these chapters, pay particular attention to chapters 13, 14, and 15.

For this discussion answer the following questions:

  1. What information (called “essential terms” in the text) must be included in a contract for it to be enforceable?
  2. What is contract “consideration?”  Why is it so important?  Should the consideration be expressly stated in the contract?
  3. What criteria should you use when including a covenant not to compete in a contract?
  4. What is the Statute of Frauds? How would you structure a contract to make sure it did not violate the statute of frauds?
  5. What is the Parole Evidence Rule?  List and explain the exceptions to this rule.
  6. What types of remedies can be included in a contract to protect yourself from the other party’s breach of the contract? Explain the function of each type of remedy.

Contract Law: Sales and Product Liability

Case study (Contract Law: Sales and Product Liabilities)

KELLER v. INLAND METALS All WEATHER CONDITIONNING, INC.

Facts: When Brain and Clarice Keller installed an indoor swimming pool in the athletic club they owned, customers began to complain that the air near the pool was hot, humid, and foul-smelling. The Kellers sought help from two contractors. Inland Metal submitted a bid to install a seven and a half (71/2) ton dehumidifier for about $30,000, and another company offered to install a 10-ton machine for about $40,000.

The Kellers were worried that the 71/2-ton dehumidifier might be too small, so Inland’s president visited the club, accompanied by a representative of the machine’s manufacturer. The men assured the Kellers that the 71/2-ton dehumidifier would work. Inland’s president followed up with a letter to the Kellers, which said:

As in any indoor pool, the air needs to be treated with outdoor fresh air, dehumidifier, air conditioned in the summer, and heated in the winter. This ducted system will rid you of the sweating walls and eliminate those offensive odors, and overall “bad air.” This is not an uncommon problem, and all commercial pool owners face the same thing until they install one of these systems. Once you complete this installation, your air problems should be over, and your customers should be satisfied and happy.

The Kellers bought the system from Inland, but the dehumidifier did not improve the problem. The Kellers sued, and the trial court found that Inland had breached an express warranty. Inland appealed.

You Be the Judge: Did Inland make an express warranty? If so did the company breach it?

Argument for Inland: Inland never made an express warranty. The company never said, “We guarantee that this unit will resolve all of the problems described.” In its letter, the company described what it expected the dehumidifier to do and mentioned that customers “should be satisfied and happy” with the improved air. That is a far cry from promising to return the cost of the machine in the event that anyone claimed the machine was imperfect. Customers complain about many things, some legitimate, some not. Inland cannot prevent finicky clients from finding fault with a good dehumidifier. If Inland had intended its product to be guaranteed against any and all complaints, it would have said so-and charged much more.

Argument for Kellers: When Inland representatives visited the health club, they assured the Kellers that the dehumidifier would do the job. An express warranty can be created orally, and that is exactly what Inland did. That is all the Kellers need to win, but they have more. Inland’s follow-up letter repeated the reassurance: “This ducted system will rid you of the sweating walls and eliminate those offensive odors.” That is a clear affirmation that the machine will meet certain standards-in other words, it is an express warranty. Inland made an oral and written warranty and must be bound by its words.

The Statute of Frauds – Oral Contracts

The Statute of Frauds

The disposing of the case between the salesman and Mark will be determined with reference to the Statute of Frauds. A collective term that describes the different statutory provisions which render certain types of contracts unenforceable unless they are written is what is referred to as the Statute of Frauds. The Statute of Frauds does not render oral contracts illegal, but it basically means that implementation may not be possible if one of the parties declines to fulfill their commitments. An example of a contract where the Statute of Frauds applies is a contract that involves the sale or transfer of property (Larson, 2010).

In the given case, Mark gave an oral contract to stand as a surety for Johnny if he fails to pay for the lawn mower on time. The oral contract is a clear agreement between Johnny, Mark and the salesperson. It qualifies as a contract because it bears some consideration in the sense that, each party has put something into the deal. Additionally, the oral contract demonstrates the intention of Johnny, Mark and the sales person to enter into a legal relationship. The only problem with the contract is that, it does not meet the requirements of the Statute of Frauds because it cannot be evidenced by writing (Larson, 2010).

The fact that Mark has failed to meet his obligations as stated in the oral contract makes the contract voidable under the Statutes of Frauds. The main purpose of the Statute of Frauds is to make certain contracts voidable by either of the parties, suppose the party fails to follow terms of the agreement. A voidable contract loses its validity the moment one of the parties declines to meet the contract requirements. This means that the court will have to set Mark free because it will be difficult to prove and impose the contract in the absence of a written agreement. Without a written and duly signed contract, it will be difficult for the court to establish after the event, precisely what Mark and the salesperson had agreed upon because either of the parties can change the statements to best help support their case (Larson, 2010).

It is most likely that the salesman will lose the case under the Statute of Frauds because the oral contract that was initially made by Mark is unenforceable since payments to the lawn mower have not been made. In other words, Mark has refused to fulfill his obligations. Even though the Statute of Frauds intends to prevent injury from fraudulent conduct, some people criticize the continued existence of these statutes, because they are frequently used by parties who freely enter into contracts then fail to fulfill their agreements (Larson, 2010). For instance, one might argue that Mark knew that he will not face any liability under the Statute if Frauds because he had made a verbal contract.  Some claim that the Statute of Frauds seeks to protect people against real abuses and they should therefore be kept in place. For example, Mark could have faced legal charges if at all the contract in question was written and properly signed by all parties: Johnny, Mark and the salesperson. A written contract could have given all the parties the opportunity to review the terms and conditions of the contract before making it final (Larson, 2010).

 

Assessing Companies Eligible For A Government Contract

Recent contract awards

Boeing

Boeing Company has recently been a beneficiary of a major contract that it was awarded by the Army through the Department of defense. The contract that was awarded to Boeing was worth $ 714 million with a responsibility bestowed upon the Boeing to make modifications on twenty six manufactured CH-47F Chinook helicopters (Boeing). Apart from that, the company was also bestowed with the responsibility of making modifications on four new CH-47S helicopters that belong to the military. The contract also gives the company an option of constructing two new CH-47s aircrafts for the military operations. The contract also provided appropriate funding for Boeing for the period during which it will be conducting the exercise. The recent tender that was awarded to Boeing is currently ongoing with its completion date expected to be somewhere around the year 2020.

Space X

Space X Company has been a beneficiary of recent contracts with its first contract being earned in the year 2005 where the company made an announcement that it had been an indefinite contract. The contract was awarded to space X by the United States Air Forces with a sole responsibility of delivering responsive small space lifts. The contract was one that could allow the air force an opportunity to purchase flights that are worth ten million U.S dollars from the space X Company.

Apart from that contract, the company was also awarded a launch service contract by NASA. The contract was supposed to be fulfilled by space x through its delivery f falcon 1 and falcon 2. The total worth of the contract was worth a whooping I billion U.S dollars but it also depended on the number of missions that were going to be awarded to the company. That contract between NASA and space X was supposed to cover the launches that were going to be delivered by space x by the end of June in the year 2013. Additionally, it was supposed to cover the launches that were going to accomplished by the same company by the end of December of 2012. In the year 2008, the company got several contracts beyond its working capabilities. By that time, space x had other contracts that it was working on, so it was forced to sell upto fourteen contracts for flights to other companies (Dinkin, 2006). Most of the contracts that it sold out were majorly on the falcon vehicles.

In the year 2012, the company landed its first ever contract with the department of defense where the air force space and the missile systems space were all involved in the contracts. Space x were awarded the two contracts that were primarily to deliver expandable launch vehicles. The contract also involved the delivery of space climate observatory that was supposed to be launched on the falcon 9 vehicle. Finally, the contract was also inclusive of the space test program that was intended to be launched on the falcon heavy.

In the year 2010, the company made an announcement that it had an intention of launching the middle sized communication satellite using the falcon nine vehicles. The mission that the company had in place eventually materialized on the third day of December 2013. SES 8 was the first contract that space x had been given within the geostationary communications satellite. Another large contract was also awarded to space x in June of the year 2010 where the company was to launch the largest commercial space aircraft. The total worth of the contract was believed to be four hundred and ninety two million dollars. That contract saw the company launch its first Iridium satellite with the help of the falcon 9 rockets.

Based on the analysis that has been provided above, the two companies may be eligible for different types of contracts. To begin with, Boeing being a large company that has been in the game for long might be eligible for costs reimbursement contracts. The reason is because the company has the financial capability of carrying out the contracts from the beginning to the end and getting reimbursement at a later date. In most cases, the company has been manufacturing commercial aircrafts for its international customers where the customers only pay for the crafts after the completion of the manufacturing process.

Space x on the other hand, can be said to be a company that may only be awarded the fixed cost contracts since it has no financial capability of bearing the entire costs of the contract without getting a financial boost. Additionally, from the explanations and examples mentioned above, it can clearly be seen that the company started getting most of its contracts in the recent years. The company therefore still needs several years for it to be able to move into the cost reimbursement category.

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Effects of ACL on Contracts – Business And Corporations Law

The streamlines ACL, requires that all the Australian and foreign businesses in operation within Australia to understand and carry the new the new standards where applicable in their scope of undertaking contractual agreements. The effects of ACL in the context of contractual undertakings take the forms:

First, the regime ensures expansion of the unfair practice provisions, providing for a new national product safety regime and new laws on contracts and consumer guarantees.This is achieved through the aim of ACL to introduce fair trading laws and consistent national consumer protection which replace a broad spectrum of state, national and territory laws (Barker, Grantham & Swain, 2015).

Secondly, the ACL entails various types of protections. These sections apply at times so extensively. For instance, ACL prohibits any form of deceptive or misleading conduct.These specific sections have deep rooting in application from the lowest level of and individual undertaking to a commercial negotiation between two large corporations.

On the perspective of consumer guarantees. The ACL imposes specific duties on the suppliers of the goods and services to consumers. These include guarantees like, the goods are of acceptable quality, and the supplier legally owns the goods among others.Moreover, the ACL gives a provision that the terms of a consumer contract is void when the term is considered to be unfair beside the contract being a standard form and a non-negotiated contract (Clark, Stuyck & Terryn, 2015).

Lastly, the ACL is a fundamental piece of legislation as it provides protection to consumers. The ACL provisions have a significant bearing on the outcome of various contractual disputes. All the reforms of the Australian contract law takes into account the point of interface between the consumer law and the contract law.

Contract Clause – Dispute Resolution Clause

Contract Clause

Introduction

The contract clause to be considered in this case is dispute resolution clause. Dispute resolution clause is a section in a contract or agreement that sets out the techniques for solving disputes between two or more contractual parties. The agreement scope is resolute in clause drafting. The dispute resolution clause requires to be unambiguous and clearly drafted. This highly determined if the clause can be used to resolve any contractual conflict or can just be dismissed as irrelevant due to a high level of ambiguity. A good dispute resolution (DR) clause constitutes of contingent in what the parties anticipate to attain from the inclusion of clause of such kind in their agreement. The DR clause need to forestall future issues and efficiently have provisions which resolves the issue satisfactorily in a way that is advantageous to both parties. Therefore, a suitable DR clause will be founded on a different variables which include the parties’ relationship and interest, the contract nature and subject matter and the respective bargaining power of the parties.  In this regard, DR clause need to be deliberately drafted, instead of routinely, with every contract customization in order to attain the most desired outcome of the parties. Thus, there is no any single DR clause which can handle all agreements (Bihancov, 2014).

Legal Issues regarding Dispute Resolution Clause

According to Bihancov (2014), a suitable DR clause must be enforceable, be a condition model to litigation, be certain and clear as to the process and mechanism to be followed, be able to foresee the issues that might arise as far as possible and be able to preserve the association of disputing parties. Different to arbitration, there is basically no basis of legislative for an agreement enforcement to mediate. Thus, a good DR clause which integrate processes of dispute resolution for instance mediation must be created to address the enforceability needs, else the insertion of a clause of that nature is objectively purposeless. The DR Clause enforceability guarantees that parties try to perform their duties under the DR clause prior to considering litigation. The probable outcomes from obligations of breaching under the DR clause gives incentives to try to resolve a conflict without litigation.

An enforceable DR Clause should not expel the court’s jurisdiction, but instead it should state clearly that the process of dispute resolution is a situation practice to litigation. This clause must be clear on the procedure to be followed to resolve a dispute and the strategies to be used to choose a third party to assisting in resolution process. The clause must also provide a clear steps to be taken in case there will be no a compromising position attained with the intervention of the third party. The clause must foresee all possible problems that they may occur which may result into unresolvable disputes in the future. Problems definition and DR clause drafting must be done to suit the expected problems which will highly be determined by the interest of individuals needing protection and representation as well as the agreement. This is a very extensive scope that expects any probable problem that include contract breach, subject or validity matter associating to the agreement, and contract termination. Finally, an enforceable clause need to enhance the preservation and maintenance of the contractual parties’ relationship. Designing the dispute progress via a suitable DR clause might assist the parties in preserving their association and finding it to be more valuable as compared to the matter of the dispute (Bihancov, 2014).

Application of Dispute Resolution Clause in Real property Management

In real property management, disputes are common between the landlord and the tenants based on different aspects. These aspects include the use of the property, the rent payment, property maintenance, property lighting, and the shared utilities among other disputes. Basically, the tenant and the landlord may develop a contract on how to resolve their issues. The contract may be drafted by the landlord and a tenant may be required to sign upon agreement. In this case, signing of the contract implies that the tenant agree to be guided by the structured contract. In case of unresolvable dispute, both the tenant and the landlord will employed the dispute resolution clause to identify the third party to assist in resolving the issue. The third party will then review the contract that binds the two and listen to the case. In this case, the third party will try to assist them resolve the case. In this case, the two parties will be anticipated to compromise to reach an agreement. The DR clause will be used to ensure that the dispute is settled without destroying the association between them, since they both need each other. In case the problem is not resolved even with the aid of a third party. In case the problem even with the aid of the party, the dispute resolution clause, the clause should guide on how they two can settle their issue in a litigation. However, this will try to be avoided by ensuring that the clause addresses all problems that can occur between a landlord and the tenant or a buyer and a seller in case the property is being sold (Scott, 2014).

References

Bihancov, A. (2014). What is an example of a good dispute resolution clause and why? Australian Center for Justice Innovation Civil Justice Research Online, 2, 1-19

Scott, M. (2014, 14 Jan). Dispute resolution in real estate contracts. Retrieved from < http://www.nabarro.com/insight/briefings/2014/january/dispute-resolution-in-real-estate-contracts/>

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Negotiating a Contract with the Navy

  1. Determine two (2) potential profit objectives that you will consider for accepting a less than normal profit margin if you win the contract. Provide a rationale for your response.

If I was to consider accepting a less than normal profit margin if you win the contract, I would determine a number of factors including the organization’s potential profit objectives

  1. i) I will consider the General Management masterpiece and contribution to contract performance. In which I will provide indirect labor the related profit/fee weight as equivalent to direct labor. I will assess managing effort on density and participation required. Also assess other cost essentials on payment to contract performance cup cub (FAR 15.404-4(d)).
  2. ii) I will consider Material acquisition administrative and technological effort essential to get materials, set the: density of items necessary; figure of buying orders/subcontracts granted and applied; Need for foundation growth; and, density of buying orders/subcontracts (FAR 15.404-4(d)).
  3. Determine two to three (2-3) negotiation strategies or tactics that you feel would be effective for winning the contract. Provide a rationale for your response.

Negotiation strategies or tactics

According to Gregory A. Garrett (2005) if you want to win the contract you should do self assessment and fill all the answers or what you think about you a table, which will guide you to know what kind person are you.

Good Communication skills is another component that according to Kolb D (2003) could help one to win a contract by having good negotiation skills and strategies. Should be able to listen and listen well, articulate words well and understand the needs for the contractor. Offer solutions on ‘how’ and when.

The FAR 52.246-1 investigation necessities stipulates that the builder is accountable for conveying out all the fundamental tests and also investigations to approve that all supplies under this understanding follow with the prerequisites of the agreement, notwithstanding all relevant specialized needs (Feldman, 2013). This necessity is the fundamental need of any administration testing and assessment required in contract prerequisites, aside from particular tests to be completed basically by the legislature. Foreman investigation prerequisites obliges that the contracting officer puts review necessities proviso, subsequent to requesting contract benefits after the assessed sum is not exactly or at the concurred edge (Feldman, 2013). The reconciliation of investigation necessities is imperative in light of the fact that it helps in verifying that an unmistakable comprehension of the foreman’s investigation parts and its procedural determination as stipulated by the organization. Examination of supplies prerequisites this is imperative when the normal sum is not exactly or at determined limit and its utilization is critical for the benefit of the administration. A portion of the proper practices that I could make to the investigation method to make the method more effective incorporate; diminishing the quantity of appraisal variables (Yukins, 2010). This is on account of the quantity of assessment variables is key determinants of the measure of information from adversaries and handled by the government to settle on the choice.

Along these lines there no need of utilizing superfluous variables. Another best practice to guarantee the viability of the assessment procedure is to breaking point the quantity of proposition data required (Feldman, 2013). As broadly known when searching for administrations, it is not important to demand offerors to clarify how they will perform the work, this is because of the way that such methods are lengthy and costly to grow, however they never demonstrate the organization’s ability to perform and regularly they are not tying (Yukins, 2010).

 

 

References

James P. (1963). Termination for Default and For Convenience of the Government.Boston College Law Review, 70.

Riggs Jr. (2014).Roadmap to Successful Termination for Default. Trautman Sanders Attorneys At Law.

The Lawyers Dispute Act, (2014).Contract Dispute Act.BT/LG

Look p. (2010) Be Aware of Triggering Partial Termination of Retirement Plans. Society of Human Resource Management.

Acquisition Central. (2014). Federal Acquisition Regulation (FAR). Retrieved on 29th November, 2014 from http://www.acquisition.gov/far/html/Subpart%2042_13.html

Feldman, S.W. (2013). Government Contract Guidebook (4th, 2013-2014 ed.) Eagan, MN: Thomson Reuters, Westlaw

Yukins, C.R. (2010). A Versatile Prism: Assessing Procurement Law through the principal-agent model. Retrievedon29thNovember,2014from http://scholarship.law.gwnu.edu/cgi/viewcontent.cgi?articles=2187&context=faculty publication

Government Contracting and Payment Options

Compare and contrast three (3) payments options and discuss the pros and cons of each. Examine the three (3) elements of the Prompt Payment Act, and provide one (1) example of each.

Software purchase is quite different from purchase of hard goods. The US government can use various options to pay for its supplies. The method used can be determined by various factors including the type of commodity supplied, frequency of purchase and the codes/acts limiting the purchase.

In purchasing of software for processing of Tax Returns, the government will follow the procurement procedure as stipulated in the Federal Acquisition Regulations (FAR). I would recommend the following payment options for this transaction:

  1. Purchasing Cards
  2. Trade ins
  3. Cash payment

Purchasing Cards

Use of purchasing cards is gaining popularity due to its lack of complexity and efficiency. A purchasing card is a charge/credit card that can be used to facilitate the procurement process of goods and services.  The card removes the need to establish a purchase order. In addition it automatically pays the supplier without the requirement for an invoice. The difference between the traditional credit card and purchase card is that a purchase card account must be settled in full by the due date indicated on the card (usually within 30 days) while a credit card allows regular monthly payments. This lack of flexibility in the payment duration can be viewed as a disadvantage in procuring of services.

Trade Ins – This method is applicable mainly in the payment of non-goods supplies. In the case of software procurement, the government acquires software from a supplier in exchange for some tax reliefs/holidays. Another exchange for the software would be operating licence extensions in exchange for software upgrades and maintenance services. This method can be disadvantageous to one or both parties due to unforeseen changes inflation and technology.

Cash payment – This is probably the oldest payment method in US government procurement history. The common practice is issuance of cheques (or RTGS) against the invoice. This is usually done within 30 days of receipt of a valid invoice or on the specific date stipulated on the contract. The payment method is straight forward and preferred by most suppliers. In cases where the government has cash flow problems, this method can be difficult to effect.

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Acquiring a Contract with the Navy

Examine two (2) reasons why your business would qualify under the basic concepts of the HUBZone Set-Aside Procedures. Provide a rationale for your response.

The business will qualify under HUBZone Set-Aside Procedures since it can be categorized as a small business under the SBA standards. The business is also exclusively owned and controlled by American Citizens, Indian Tribes, and Community Development Corporations. Lastly, over 35% of the people employed by the business reside in a HEBZone(Feldman, 2013).

Analyze the primary way(s) in which a multiyear contract would benefit both the Navy and your business.

A multiyear contract is any contract that requires over one fiscal year to complete. In other words, a multilayered contract’s performance must extend past the current fiscal year. Such contracts have a number of advantages and disadvantages for both the Navy and the small business. Some of the advantages include:

A multiyear contracting may reduce expenses associated with the contract. This form of contracts allows the business to amortize nonrecurring initial costs over the contract’s life span as compared to recovering them within the first year, which would be the case in non-multiyear contracts. Since other contracts do not guarantee future contracts, contractors usually want to recover all the start up costs within the first year thus increasing unit prices.

A multiyear contract can potentially enhance the quality of products and services delivered. Multiyear contracts reduce business uncertainties, which would enable the business to maintain a steady workforce. This would be an advantage to both the navy and the business(Feldman, 2013). Finally, a multiyear contract tends to increase competition between contractors by enabling small businesses to compete in an environment where initial start up costs would otherwise hinder them from competing with larger concerns. This not only helps the business compete fairly with large farms but also increases Navy’s chances of getting a good contractor at a reasonable price (James, 1963).

Determine whether your bid proposal should be based on a fixed-price, a cost-reimbursement, or a time-and-materials type of contract. Provide a rationale for your response.

Selecting the best contract type is largely a matter of negotiating and it requires the application of healthy judgment. Negotiating the type of contract is closely related to negotiating prices and thus they should be deliberated together. The main aim is to negotiate a contract type and estimated cost that will lead to equitable contractor risk and thus give the contractor the greatest possible incentive for professional and cost-effective performance.

Contract selection is founded on ambiguity of scope, allocation of risk, requisite for foreseeable costs, and the impact of meeting preset milestone dates. The contract should be a fixed-price contract. This type of contract was selected since it is suitable for long projects that run for years. A fixed-price contract best exploits the fundamental profit motive of any business and is ideal when the risk involved is either marginal or predictable with a reasonable certainty.

A fixed-price contract is generally an agreement between the project organization and an entity that will provide the service or product sought after at a fixed price that has been agreed upon, in this case the entity will be our business. A fixed contract normally specifies the product or service quality, the project’s duration, and the cost of delivering the goods or services. There are several types of fixed price contracts. When the scope of work is precise, clear and unlikely to change, the type of fixed price contract used allows for predictable costs. The obligation for managing the project and ensuring that all project’s needs are met is placed on the contractor.

Fixed-price contracts require the availability of at least two or more suppliers that have the qualifications and performance histories that assure the needs of the project can be met. The other requirement is a scope of work that is most likely not going to change. Developing a clear scope of work based on good information, creating a list of highly qualified bidders, and developing a clear contract that reflects that scope of work are critical aspects of a good fixed-priced contract.

Determine the category of incentives that you are willing to offer (i.e., cost, schedule, or performance). Provide a rationale for your response.

Performance incentives.

Performance incentives are usually considered when dealing with specific products or specific elements of the servicer’s performance. These incentives are designed to relate the fee charged to outcomes achieved when compared to specific targets.

References

James P. (1963). Termination for Default and For Convenience of the Government.Boston College Law Review, 70.

Riggs Jr. (2014).Roadmap to Successful Termination for Default. Trautman Sanders Attorneys At Law.

The Lawyers Dispute Act, (2014).Contract Dispute Act.BT/LG

Look p. (2010) Be Aware of Triggering Partial Termination of Retirement Plans. Society of Human Resource Management.

Acquisition Central. (2014). Federal Acquisition Regulation (FAR). Retrieved on 29th November, 2014 from http://www.acquisition.gov/far/html/Subpart%2042_13.html

Feldman, S.W. (2013). Government Contract Guidebook (4th, 2013-2014 ed.) Eagan, MN: Thomson Reuters, Westlaw

Yukins, C.R. (2010). A Versatile Prism: Assessing Procurement Law through the principal-agent model. Retrievedon29thNovember,2014from http://scholarship.law.gwnu.edu/cgi/viewcontent.cgi?articles=2187&context=faculty publication

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